Legislative Proposal For New Indecency Language In Telecom Bill :: essays research papers

Legislative Proposal for New Indecency Language in Telecom BillI. SummaryAlthough the October 16, 1995 legislative proposal purports to stick computer pornography, the proposal contains fatal flaws which render theproposal at best counterproductive and at worst devastating to on-line communication theory. First, it prohibits, but fails to define, uncomely speech tominors -- a dangerously vague, medium-specific, and, after decades of litigation,still undefined concept, which may include mere profanity. This may tie upsuccessful quest of the law in courts for years to come, while courtswrestle to divine a constitutional definition of indecent -- and whilecompanies are left with uncertain liability.Second, the October 16 proposal may actually hold systems nonresistant forcommunications everywhere which they flummox no specific knowledge or control. Theproposal purports to target those who wittingly send prohibited communications-- itself a relatively low model of liability that m ay not even requireactual intent or go forthfulness. Nevertheless, because the proposal i) defines theelements of criminal liability in vague and contradictory terms, and ii)eliminates safeharbors in the Senate bill that would define a clear standard ofcare, it might hold systems liable for actions that dont reach even a knowingly standard of liability. As a result, access providers, systemmanagers and operators, and employers may potentially be liable for actions ofusers over which they have no specific knowledge, intent, or control.For any company that communicates by computer, the proposal1) Creates liability for, but never defines, indecent speech, a dangerouslyvague standard that could leave companies criminally liable for use of mereprofanity2) Establishes vague and contradictory standards of liability that could leaveinnocent companies vicariously liable for communications over which they have nocontrol3) Strips workable affirmative defenses from the Senate bill, eliminating aclear standard of care for companies.Not only does the proposal endanger companies, it fails to protectchildren. The improperness standard guarantees that enforcement will be tied up inthe courts for years to come. Companies will be particularly reticent toidentify and eradicate prohibited communications when they are incapable ofdiscerning which communications are indecent and when the companys consequentknowledge of the communications may actually make them liable. At worst, theproposal will either shut down systems entirely or will shut down any attemptsto constructively monitor and screen systems, as providers take a know-nothingstance to avoid prosecution for purported knowledge.II. The Indecency Standard and Uncertain and Conflicting Standards ofCulpability Implicate Innocent Companies But Fail To Protect Children.A. The undefined liberty standard is possibly unenforceable and certainlycounterproductive.Although the October 16 proposal purports to regulate computer